Celebrated US Supreme Court (US SC) progressive judge Ruth Bader Ginsburg (RBG) passed away due to metastatic pancreas cancer on Friday, aged 87, according to a release. Her demise sets the stage for a political showdown over who will fill her seat on the SC, in a loud echo of a similar situation in 2016, also being a presidential election year. Then, the passing of Justice Antonin Scalia in February caused a legislative logjam and political scuffle due to how judges are appointed. Only this time, it is much closer to the US presidential election, scheduled to be held on November 3.
She served as a justice for 27 years on the SC after being appointed by US President Bill Clinton in 1993 - and was the second woman to be appointed to this position - with a legal career spanning six decades. As a liberal and feminist luminary, she earned the social media moniker 'The Notorious RBG' in part due to the saucy dissent she displayed as a judge.
"Renowned for her brilliant mind and powerful dissents at the US Supreme Court, Justice Ginsburg demonstrated that one can disagree without being disagreeable towards one's colleagues or different points of view", remarked US President Donald Trump in his statement on her passing.
As the the showdown brews, BOOM walks you through the process and what to expect.
How are judges chosen?
The ascension of a judge to the US SC is a deeply political process that involves the executive and legislative branch of government. There are two main stakeholders in the process - the presidency, and the Senate: the upper house of the US legislature.
From the US SC:
"The President nominates someone for a vacancy on the Court and the Senate votes to confirm the nominee, which requires a simple majority. In this way, both the Executive and Legislative Branches of the federal government have a voice in the composition of the Supreme Court."
This process is defined in the US Constitution. The Senate Committee on the Judiciary carries out the nomination hearing of the potential judge after the President nominates the candidate, votes on it, after which it is put to a vote by the full 100-member Senate.
The Senate Committee on the Judiciary has highlighted this tradition here.
And here's the politics
The nomination of a judge has temporal ramifications, since the judges, once appointed, hold the office for life or till resignation. Therefore, judicial appointments by presidents influence the prevailing ideology of the institutions to which they are appointed. While pivotal ordinarily, the process is even more heated during an election year.
The US last saw this in 2016, when noted conservative judge Antonin Scalia passed away in February. Being an election year, sitting President Barack Obama nominated Justice Merrick Garland - a moderate - to fill in the seat.
However, the Majority Leader in the Senate, Mitch McConnell (who is a Republican) stated that the Senate would not give Garland a hearing and that the Scalia's seat's vacancy should be filled by the next president so that the "American people should have a say in the course of its direction", and with the Republicans blocking any hearing and vote in the Senate. He cited the so-called 'Biden Rule' based on a speech made by then Senator Joe Biden in 1993, which is put in context here.
The loggerheads created between the Obama presidency and the Senate culminated in the seat vacated by Scalia staying empty for a total of 14-months. President Donald Trump, after winning the election, nominated conservative Neil Gorsuch to the post in April 2017, which got him confirmed.
With the death of RBG, the tables have turned.
While McConnell has called for a swift nomination and hearing in the Senate; Biden (who is now the Democratic Presidential nominee) and former President Obama (in his obituary to RBG) have called for the Senate to uphold the stance taken by them four years ago and let the next president fill in the vacancy
Should Trump be successful in nominating a judge in RBG's place before his term ends in January 2021, he would have nominated three of the nine judges on the US SC (the other two being Gorsuch and Brett Kavanugh, appointed in 2018).
A potential conservative appointment to the Court by Trump would leave six judges on the conservative scale, and three who are relatively liberal; thus influencing the ideology of the court for the time to come.